MANILA, Philippines – Former senator Ramon “Bong” Revilla Jr and Janet Lim-Napoles want the anti-graft court Sandiganbayan to outrightly dismiss their plunder charges over the multi-billion-peso pork barrel scam.
They filed before the first division of the Sandiganbayan a motion for leave, seeking permission from the court to deviate from its established procedures. Once this is approved, they can file a demurrer to evidence, a pleading that tells the court they no longer need to present their own evidence because the weak evidence of the prosecution is enough to throw out the case against them.
If the court grants the demurrers, the plunder case is dismissed and Revilla can be set free. Napoles, on the other hand, has to have all her 5 plunder cases dismissed before she can be granted freedom.
Revilla’s lawyer, former solicitor general Estelito Mendoza, in his own motion, quoted decisions from the Supreme Court (SC) that involved his own cases.
Mendoza relied largely on the SC decisions on the plunder cases of his other clients, former senator Juan Ponce Enrile and former president Gloria Macapagal-Arroyo. (READ: Estelito Mendoza and his 2017 comeback in plunder cases)
First, Mendoza won for Enrile a Bill of Particulars case in the Supreme Court. In that decision, the SC said that the “series or combination of overt acts” must be specified to charge someone with plunder.
Hitting the prosecution’s case on technicalities, Mendoza said the Ombudsman prosecutors were unable to specify the series of criminal acts that Revilla supposedly committed.
Mendoza used this argument before in a Motion to Quash, but the First Division denied it in February.
Second, Mendoza referenced the SC decision that acquitted Arroyo in the P300-million PCSO intelligence fund scam. In that decision, the SC said there should be a main plunderer in every case.
This decision has helped former senator Jinggoy Estrada get bail, and it’s not stopping the Revilla camp from using it to help their own case.
Down to P18.25 million
Though the prosecution alleged that Revilla, through staff Richard Cambe, received P224.5 million in kickbacks from Napoles, the First Division said in a resolution that the prosecution has “strongly proven the amount of P103 million.”
Mendoza said that the amount is further slashed to P36.5 million because other disbursements lacked either an endorsement letter or a Special Allotment Release Order or SARO.
Then he came around to using the main plunderer principle.
Because the Supreme Court divided the amount into 10 in the Arroyo case in the absence of a main plunderer, Mendoza said P36.5 million should be divided into two, seeing that Revilla and Cambe appear to be the two main plunderers.
The amount, Mendoza claimed, should be P18.25 million, way below the plunder threshold of P50 million.
Mendoza also highlighted the fact that it was Cambe who allegedly received the money. To wrap it up, Mendoza pinned the blame on whistleblower Benhur Luy and Napoles.
“It bears reminding that the ones solely responsible for the duly funded projects turning out to be ghost or fictitious and which enabled Napoles to misappropriate the PDAF proceeds for her personal gain are Benhur Luy and his fellow whistleblowers under the direction and management of Napoles,” Mendoza said. (READ: How Revilla's team is defending him in his plunder trial)
Private individual vs public officer
Napoles’ lawyers had a more simple approach to using the main plunderer principle.
They said the plunder charge is insufficient because the plunder law states that the conspiracy must be geared towards helping a public officer amass ill-gotten wealth. (READ: PDAF cases, Duterte-time: Napoles confident of freedom 'in less than 2 years')
In this case, Napoles said she is being made to appear as the main plunderer, but she is not a public officer.
“The crucial link establishing that the public officers charged herein were given any amounts generated from the PDAF proceeds or disbursements, right after the release of the funds to the alleged NGO, remains missing,” said Napoles’ motion.
Before he left the Office of the Ombudsman to be a judge in Tarlac City, lead prosecutor Joefferson Toribio said that what will pin down Revilla are the findings of the Anti-Money Laundering Council or AMLC.
AMLC lawyer Leigh Vhon Santos took the witness stand in 2014 and said that P87 million in cash deposits in Revilla's account matched Benhur Luy's financial records. The deposits to the Revilla accounts were made within the dates that appear on Luy's ledger, when he supposedly delivered kickbacks to Revilla et al.
On this issue, Mendoza simply said that Santos’ testimony is “nil as proof of any of the elements of plunder.”
What Mendoza discussed at length were the testimonies of bank representatives that the prosecution brought to court at the tail end of their presentation last September.
When he cross-examined the witnesses, Mendoza got them to say that at the time of the transactions, neither the bank nor the AMLC did anything to flag them as unlawful activities.
And since the Anti-Money Laundering Act defines plunder as among unlawful activities, Mendoza said the non-action of the banks and AMLC at the time was proof that really, nothing illegal happened.
Mendoza appears to be confident with what he has, as both Estrada and Enrile are enjoying temporary freedom.
Toribio has also left the case.